Editor’s Note: The following two articles are based on Diane F. Bosse’s and Laurel S. Terry’s presentations at their joint session “Admitting Foreign-Trained : Understanding the Issues” at the 2014 NCBE Annual Admissions Conference held on May 1–4, 2014, in Seattle, Washington. The articles are intended to complement each other by providing a snapshot of the foreign-educated applicant pool taking the New York Bar Examination and the rules by which these appli- cants may qualify to take the exam, and exploring the broader range of methods by which foreign-educated applicants may be permitted to practice in U.S. jurisdictions, including a discussion of the reasons why jurisdictions should consider rules regarding these methods.

Testing Foreign-Trained Applicants in a New York State of Mind by Diane F. Bosse

he United States recognizes 195 indepen- attorneys able to oversee cross-border issues, the dent states in the world.1 In 2013, candi- Court reviewed its Rules authorizing foreign- dates from 111 of them came to New York trained attorneys to sit for the New York State to take our bar exam. From every conti- bar examination. Consistent with the General Tnent, from Azerbaijan to Zimbabwe, and from Eritrea Agreement on Trade in Services (GATS), negoti- to Ecuador, they came, 4,602 in number. Where did ated by the United States Trade Representative, they come from? Why did they come? How did they the Court sought to update its rules to allow for qualify to take our exam? And how did they fare on transnational legal service without diminishing the ? This article offers answers to those ques- the quality of legal representation to be provided tions. First, some history. or the qualifications of New York admitted 3 In the August 1998 edition of this publication, an attorneys. article appeared describing the New York Court of In 1997, the year before the new rules were Appeals’ recently revised rules regarding the edu- enacted, New York tested 1,701 foreign-educated cational eligibility requirements to sit for the New 4 candidates, 15% of our candidate pool of 11,205. York Bar Exam, including those for foreign-educated In 2013, the 4,602 foreign-educated candidates we attorneys.2 The article, co-authored by then Court tested comprised 29% of our candidate pool of 15,846. of Appeals Associate Howard A. Levine and Between 1997 and 2013, the number of graduates of Court Attorney for Professional Matters Hope B. ABA-approved schools we tested increased by Engel, offered the following premise for New York’s 18%; the number of our foreign-educated candidates approach to the eligibility of foreign lawyers: grew in that period by 170%. The percentage of New York State is a center for international trade foreign-educated candidates in our test population and commerce. Recognizing that lawyers play an will likely increase in the coming years, given the important role in the global economy and that decline in enrollment in J.D. programs at ABA- the international markets demand competent approved law schools5 and the burgeoning number

Testing Foreign-Trained Applicants in a New York State of Mind 31 of LL.M. programs in those institutions,6 designed to as the lands from which they travel to take the test. prepare foreign-educated lawyers for bar admission First, there are significant immigrant populations in in the United States. New York, and many foreign-educated lawyers are engaged in practices that serve their needs. Where Do They Come From? Second, admission to the New York Bar is a Of the 111 foreign countries represented in our 2013 valuable employment credential for many foreign- candidate pool, most had fewer than 10 candidates educated law graduates. There are a few different sitting for our bar exam. However, more than 100 reasons for this. New York is the jurisdiction selected candidates hailed from each of the 10 countries indi- in the choice of law provision in many international cated in Table 1. contracts, thereby making New York law the one Our Chinese candidate pool is our largest con- agreed to by all parties in interpreting the agreement. tingent and has seen the most dramatic increase. Thus, admission to the New York Bar, and presumed The number of candidates coming to New York for competence in New York law, is an asset to a our bar exam from China was 115 in 2000 and 500 seeking employment in an international law firm, in in 2008. That number increased to 1,148 in 2013.7 In New York or elsewhere around the world. addition to China, Brazil, Korea, and Russia also saw significant increases in the number of candidates. Strong American influence on global corporate, Over the last few years, Brazil has replaced Australia insurance, intellectual property, banking, securities, on the 100+ candidate list. In addition to Australia, and antitrust law make the combination of an LL.M. Canada, Germany, , the Philippines, and Spain degree from an American and bar admis- have seen their numbers decline. sion in the United States a valuable employment credential. New York is most frequently the forum of Why Do They Come? choice to take the bar exam in the United States for Foreign-educated law graduates seek admission to foreign-educated candidates hoping to gain that cre- practice in New York for reasons likely as varied dential because of its less stringent eligibility require- ments, the number of international law firms having Table 1: Countries with More than 100 Candidates offices in New York, and New York’s perceived posi- Taking the New York Bar Exam in 2013 tion in global financial affairs. In 2013, 5,928 foreign-

COUNTRY NUMBER educated candidates sat for a bar examination in the China 1,148* United States. They sat in 28 separate jurisdictions, United Kingdom 566 with 4,602 of them sitting in New York.8 Japan 365 Korea 301 France 202 In some countries, admission to practice is quite India 172 restricted, by quotas and/or low passing rates on the Canada 156 licensing exams. Law graduates from those countries Nigeria 129 may take the New York Bar Exam in order to become Brazil 122 employed in international law firms in their home Ireland 104 countries, practicing international law, despite being * This number includes 52 candidates from Hong Kong and 174 candidates from Taiwan. unable to gain admission to practice local law.

32 The Bar Examiner, December 2014 Then there are candidates who are able to gain in a common law country, satisfying the educational admission in their home countries more readily as requirements for admission to practice in that coun- a member of the New York Bar. Take the example try, may qualify to take the New York Bar Exam of the law graduate seeking to become a without further education, provided that the candi- in England. Following completion of the academic date’s program of was durationally requirements and a , the poten- and substantively equivalent to an ABA-approved tial solicitor must complete practice-based training, law school J.D. program.12 A candidate can “cure” a through a . If unable to secure a substantive or durational deficiency, but not both, by training contract, the candidate can come to New taking an LL.M. program meeting the requirements York and take our bar exam, without further edu- of our rule at an ABA-approved law school in the cation or training, and, on passing our exam and United States.13 being admitted to practice in our state, take the tests comprising the Qualified Lawyers Transfer Scheme.9 Candidates from non–common law countries Upon passing those tests, the candidate will then can also qualify, but they are generally required to qualify for admission as a solicitor in England, with- meet an additional educational component. A candi- out having completed a training contract. date who received a from an accredited institution in a non–common law country, satisfy- Similarly, a French law graduate who obtains an ing the educational requirements for admission to LL.M. degree, and who takes and passes the New practice in that country, whose program of legal York Bar Exam and is admitted to practice in New education was either substantively or durationally York, can be admitted to practice in France under equivalent to an ABA-approved law school J.D. pro- special procedures available to non–European Union gram, can cure a substantive or durational deficiency, attorneys.10 Specifically, such candidates are exempt but not both, by taking an LL.M. program meeting from the required 18 months of training in an École the requirements of our rule at an ABA-approved des Avocats (EDA), a regional school in charge of 14 law school in the United States. Essentially, if a the professional training of lawyers, and they take candidate has had three years of full-time or four an exam to assess their knowledge of French law years of part-time legal education satisfying the edu- instead of the Certificat d’Aptitude à la Profession cational requirements for admission in the country d’Avocat (CAPA), which is the French bar exam. where the education was completed, by obtaining an

For these reasons and others, with each passing LL.M. degree in the United States in conformity with year, more and more foreign-educated candidates New York’s specific curricular requirements, the apply for a determination of eligibility to take the candidate can qualify to take our bar exam. New York Bar Exam. The final path for foreign-educated candidates to establish eligibility to sit for our bar exam is the ow o hey ualify H D T Q ? only route that requires admission to practice. A Foreign-educated law graduates can qualify to take candidate admitted to practice in a common law the New York Bar Exam by following one of three country, with an education that was both dura- routes.11 The first route is available to law graduates tionally and substantively deficient as compared to educated in common law countries. A candidate who the education provided in an ABA-approved law received a law degree from an accredited institution school J.D. program, can, in some cases, cure the

Testing Foreign-Trained Applicants in a New York State of Mind 33 deficiency by taking an LL.M. program meeting the for full-time equivalence), and a written statement requirements of our rule at an ABA-approved law from the degree-conferring institution providing school in the United States.15 The candidates who proof of durationally equivalent legal education. qualify under this track are generally in the United Kingdom whose undergraduate degree No statistics are kept on the number of foreign was not a qualifying law degree, as defined by the applicants denied eligibility to take the New York Solicitors Regulation Authority, but who qualified Bar Exam, but common causes of denial are that the for and were admitted to practice through a separate degree obtained in the foreign country was not a process, involving further academic and vocational degree in law, that the degree was obtained through training, following their undergraduate degree.16 distance education, and/or that the period of law study in a non–common law country was not dura- In essence, there are six components to determin- tionally sufficient. ing if a foreign-educated candidate can qualify to sit for the bar exam in New York: New York’s Recent Amendments to its LL.M.

• Does the applicant have a qualifying degree Program Requirements in law? In 2011, the New York Court of Appeals amended its • Is the degree from an accredited institution? rule regarding the specific requirements for an LL.M. • Was the degree obtained in a common law program sufficient to qualify as a “cure” for the country? substantive or durational deficiency in the legal edu- • Was the education received substantially cation of a foreign-educated candidate.18 This amend- equivalent in substance to that of an ABA- ment came after the Court observed over a number approved law school J.D. program? of years that many LL.M. programs were focused • Was the period of law study substantially equivalent in duration to that of an ABA- on international finance and similar disciplines with approved law school J.D. program? little emphasis on United States or New York law. • Is a cure available and appropriately Some programs did not require students to attend completed? any classes in the United States; others were of brief duration and uncertain pedagogical value. Coupled “Substantial equivalence” is not “substantial with the comparatively low passing rate of many of compliance” with the ABA Standards for accredita- the candidates qualifying to take the New York Bar tion. Based on our staff’s knowledge and experience Exam based on these programs and their high cost, in examining educational programs and educational the Court felt that some additional prescription for requirements for admission to practice in common these programs was in order. A qualifying LL.M. law countries, as well as student transcripts, a degree program must now meet these requirements: in law that qualifies a candidate for admission in his or her home country is often a proxy for substantial • 24 credit hours; 17 equivalence in substance. Substantial equivalence • at least two semesters; in duration is typically confirmed by review of the • no more than four credit hours taken in the candidate’s transcript, requiring proof of attendance summer; for three academic years (full-time) or four academic • all coursework completed at the campus of years (part-time), review of courses taken (with an an ABA-approved law school in the United expectation of six to eight courses per academic year States;

34 The Bar Examiner, December 2014 • program completed within 24 months of the course of study followed by the student was matriculation; primarily in law courses, while permitting some • no credit for distance education courses; courses to be taken outside of the law school. • at least two credit hours each in professional responsibility, legal research and writing, Approximately 75% of our foreign-educated and American legal studies; candidates qualify to take the New York Bar Exam • at least six hours in other courses tested on based upon having completed an LL.M. degree, with the New York Bar Exam; approximately 25% qualifying based on their foreign • a maximum of four hours in clinical courses; education alone. An emerging trend is for candidates and with a common law education sufficient to qualify • a maximum of six hours in other courses them to sit for the bar exam to nonetheless seek an related to legal training taught in the United States by faculty of the law school or its LL.M. degree because of the employment opportuni- affiliated university or by faculty of an insti- ties such a degree offers. tution with which the law school offers a joint degree. And How Do They Do? The American legal studies requirement can A candidate who survives the scrutiny of the quali- be fulfilled by a course “in American legal studies fication process can then take the test. The passing . . . or a similar course designed to introduce stu- rates vary significantly and are consistently substan- dents to distinctive aspects and/or fundamental tially below the passing rates for J.D. graduates of principles of United States law,” such as a course in ABA-approved law schools. The passing rates of the United States or federal or state 10 countries that had more than 100 candidates sit- 19 . ting for the New York Bar Exam in 2013 are shown in Table 2. The Court wanted to encourage foreign students to engage with their fellow students and professors, There were seven countries that had between to their common benefit, enriching the law school 50 and 100 candidates sitting for the New York Bar community and the experience of all its constituents. The requirements that the program not be com- Table 2: Passing Rates of the 10 Countries with More pleted in the summer, that it be completed on the than 100 Candidates Taking the New York Bar Exam United States campus of the law school, and that in 2013 it not include distance education courses reflected COUNTRY/NUMBER OF PASSING RATE the Court’s intent that the students seeking a degree CANDIDATES to satisfy the educational requirements to become Canada (156) 64.1% France (202) 48.5% a New York lawyer should be exposed to the Japan (365) 43.3% maximum extent possible to the academic life of an Ireland (104) 35.6% American law school with the rich opportunities for Brazil (122) 34.4% acculturation and professional development pre- China (1,148) 33.3% sented by that experience. United Kingdom (566) 30.4% Korea (301) 30.2% The limit on credit hours in “other courses re- India (172) 22.7% lated to legal training” was designed to ensure that Nigeria (129) 10.1%

Testing Foreign-Trained Applicants in a New York State of Mind 35 Table 3: Passing Rates of the Seven Countries with Jurisdictions considering adopting rules relat- 50–100 Candidates Taking the New York Bar Exam ing to the eligibility of foreign-educated candidates in 2013 to sit for their bar exams might consider whether to require that the foreign-educated candidate COUNTRY/NUMBER OF PASSING RATE CANDIDATES • have been educated in a common law Australia (83) 60.2% country; Germany (56) 55.4% • have a law degree, as opposed to a degree in Israel (64) 45.3% another discipline; Mexico (67) 43.3% • be admitted to practice in his or her home Italy (77) 39.0% country; Russia (78) 35.9% • have practice experience in his or her home Colombia (61) 23.0% country; • have an LL.M. degree meeting defined cur- Exam in 2013. Those countries and their passing rates ricular requirements; and are shown in Table 3. • have taken courses such as civil procedure, legal research and writing, and professional Three countries in the world had a 100% passing rate responsibility. on the New York Bar Exam in 2013: Malaysia, Malta, and Togo each had one candidate sit for our bar Of course, aside from full admission, there are exam, and in each case, the candidate passed. other mechanisms by which foreign-trained lawyers can practice on a limited scale in the United States, The passing rates for foreign-educated candi- including pro hac vice admission, temporary practice dates have been fairly consistent over the last five rules, registration as in-house counsel, and admis- years, with first-time takers of the exam passing at a sion as a foreign legal consultant. Rules permitting rate on average of 44%, and with all foreign-educated such limited practice merit consideration, whether candidates (including first-time takers and those or not full admission is available to the candidate repeating the test) achieving a passing rate averaging educated outside the United States. 34%. That contrasts with an average passing rate for first-time takers who graduated with a J.D. degree New York’s central position in the global econ- from an ABA-approved law school of 85% and for all omy was the impetus for the establishment of rules ABA graduates of 76%. that permit foreign-educated law graduates to sit for the bar exam in New York. The result has been explo- Conclusion sive growth in the numbers of such candidates and the number of places in the world from which they The New York Court of Appeals made the policy come. Indeed, the New York Bar Exam itself has choices it did in crafting rules for the admission of become an instrument of international commerce! foreign-trained lawyers with an eye toward New York’s unique position in international trade and commerce. But New York is not alone in the engage- Notes ment of its citizens with foreign nationals and the 1. Independent States in the World, Fact Sheet (Sept. 12, need for lawyers trained to deal with legal issues that 2014), U.S. Department of State, Bureau of Intelligence and Research, http://www.state.gov/s/inr/rls/4250.htm (last cross international borders. visited Oct. 2, 2014).

36 The Bar Examiner, December 2014 2. Howard A. Levine & Hope B. Engel, New York’s Revised satisfying the requirements for the vocational stage of train- Attorney Admission Rules: Still Rigorous but More “User- ing required for admission. Solicitors Regulation Authority, Friendly,” 67(3) The Bar Examiner 39–44 (August 1998). SRA Training Regulations 2014—Qualification and Provider 3. Id. at 41. Regulations, http://www.sra.org.uk/solicitors/handbook/ trainingregs2014/content.page (last visited Oct. 29, 2014). 4. All statistics regarding the New York Bar Exam in this article were obtained from a review of the statistics on candidate 17. For example, in England and Wales, students are required pools and performance maintained by the New York State to take and pass seven courses in the Foundations of Board of Law Examiners. Legal Knowledge, identified as Public Law, including Constitutional Law, , and Human Rights; 5. Enrollment in J.D. programs at ABA-approved law schools Law of the European Union; ; Obligations, declined by 24% from fall 2010 to fall 2013. American Bar including Contracts, Restitution, and Torts; Property Law; Association, ABA Section of Legal Education reports 2013 and Equity and the Law of Trusts. See & law school enrollment data, http://www.americanbar.org/ Solicitors Regulation Authority, Academic Stage Handbook, news/abanews/aba-news-archives/2013/12/aba_section_ Schedule Two (July 2014), available at http://www.sra.org.uk of_legal.html/(last visited Oct. 30, 2014). /students/academic-stage.page. In Nigeria, required courses 6. There are over 400 non-J.D. programs currently offered by for a law degree are Legal Methods, Nigerian Legal System, ABA-approved law schools. See American , Contracts, Constitutional Law, Company Law, Commercial Programs by Category, http://www.americanbar.org/ Law, Criminal Law, Equity and Trusts, Evidence, Land Law, groups/legal_education/resources/llm-degrees_post_j_d_ Torts, and Jurisprudence. See International Bar Association, non_j_d/programs_by_category.html (last visited Oct. 30, How to qualify as a lawyer in Nigeria, http://www.ibanet 2014). .org/PPID/Constituent/Student_Committee/qualify_ 7. This number includes 52 candidates from Hong Kong and lawyer_Nigeria.aspx (last visited Nov. 1, 2014). In Australia, 174 candidates from Taiwan. law students are required to take the “Priestley Eleven,” which are Criminal Law and Procedure, Torts, Contracts, Property, 8. 2013 Statistics, 83(1) The Bar Examiner 6 (March 2014), at Equity (including Trusts), Company Law, Administrative 10–11. Law, Federal and State Constitutional Law, Civil Procedure, 9. The Qualified Lawyers Transfer Scheme provides a route by Evidence, and Ethics and Professional Responsibility. See, which foreign-licensed attorneys can be admitted to practice e.g., of Victoria Council of Legal Education as solicitors in England and Wales. See Solicitors Regulation Board of Examiners, http://www.lawadmissions.vic.gov Authority, Qualified Lawyers Transfer Scheme, http:// .au/admission_requirements (last visited Nov. 1, 2014). www.sra.org.uk/solicitors/qlts.page (last visited Oct. 21, 2014). [Editor’s Note: For a description of the Qualified 18. Rules of the Court of Appeals, supra note 11, § 520.6(b)(3). Lawyers Transfer Scheme, see Susan M. Case, Ph.D., The 19. Id. § 520.6(b)(3)(vi)(c). Testing Column: Testing Foreign-Trained Lawyers: A New Exam in England and Wales, 80(3) The Bar Examiner 34–37 (September 2011).] 10. Conseil National des Barreaux, The Legal Profession in France, Being a Lawyer in France: Accessing the Legal Profession, http://cnb.avocat.fr/Being-a-Lawyer-in-France -Accessing-the-Legal-Profession_a1735.html (last visited Oct. 27, 2014). See also Russell W. Dombrow & Nancy A. Matos, The ABA Guide to International Bar Admissions 149–160 (ABA Publishing 2012). 11. Rules of the Court of Appeals [22 N.Y.C.R.R.] § 520.6. 12. Id. § 520.6(b)(1). 13. Id. § 520.6(b)(1)(ii). 14. Id. § 520.6(b)(1)(ii). 15. Id. § 520.6(b)(2). 16. These candidates qualify for admission as a solicitor gener- ally through the completion of a one- or two-year Common Professional Examination course of study (also referred to as Diane F. Bosse is chair of the New York State Board of Law a Graduate Diploma in Law) following their undergraduate Examiners and a former NCBE chair. A graduate of the State degree, satisfying the academic stage of education, plus a University of New York at Buffalo, Bosse is of counsel to the Legal Practice Course and a period of recognized training, Buffalo law firm of Hurwitz & Fine PC.

Testing Foreign-Trained Applicants in a New York State of Mind 37